SAN DIEGO, CITY OF v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITYRespondent’s Opposition to the Request for Judicial Notice of Excerpts of the Administrative Record Cited in the Answer Brief on the MeritsCal.October 23, 2012UPREME COURT FILED COPY OCT 23 2012 9199557 Frank A. McGuire Clerk IN THE Deputy SUPREME COURT OF CALIFORNIA CITY OF SAN DIEGOetal., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent. AFTER A DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE CASE No. D057446 OPPOSITION TO REQUEST FOR JUDICIAL | NOTICE OF EXCERPTS OF THE ADMINISTRATIVE RECORD CITED IN THE ANSWER BRIEF ON THE MERITS HORVITZ & LEVY Lup GATZKE DILLON & BALLANCE LLP BRADLEY S. PAULEY(BAR No. 187298) MARKJ. DILLON (BAR No. 108329) JEREMY B. ROSEN (Bar No. 192473) MICHAELS. HABERKORN(BAR NO. 159266) MARKA. KRESSEL (BAR No.254933) DANIELLE K. MORONE(Bar No. 246831) 15760 VENTURA BOULEVARD, 18TH FLOOR . 2762 GATEWAY ROAD ENCINO, CALIFORNIA 91436-3000 CARLSBAD, CALIFORNIA 92009 (818) 995-0800 + FAX: (818) 995-3157 (760) 431-9501* FAX: (760) 431-9512 bpauley@horvitzlevy.com mdillon@gdandb.com jrosen@horvitzlevy.com mhaberkorn@gdandb.com mkressel@horvitzlevy.com dmorone@gdandb.com ATTORNEYS FOR DEFENDANT AND RESPONDENT BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY - TABLE OF CONTENTS Page TABLE OF AUTHORITIES... cecccccecccessceeeeeessecesseesseeesseeeseees ii INTRODUCTION...cccceeeeees Laceesneeeesaeesseeeeedeneeeeeseaeeeensnsnees 1 ARGUMENT0cceeceececeeeseesesesseesecesseesseseesseeessesseeessrensans 2 A. Amotion for judicial notice is not the appropriate procedure to provide the Court with a courtesy compendium of documentsalready in the Court’s POSSESSION............cccccccesceecccseseecccscuuecscssescsceacececeueeetsenaues 2 B. At minimum, this Court should not take judicial notice of adocument the superior court ruled was. not part of the administrative record................eeee 4 C. The lower courts did not take judicial notice of the entire administrative record. «0.00.00...eee 5 CONCLUSION o.oocc ecccececceseceeesesesseeeeessceeeceseeesseesseceseseesseeenecnas 6 TABLE OF AUTHORITIES Cases In re Tobacco Cases IT (2007) 41 Cal.Ath 1257 ooeeeseeeeeeeeeeeseeseeseeeenee Katzeff v. Department of Forestry & Fire Protection (2010) 181 Cal.App.4th 601 oo. ceececeeesecesessseseeeraes Lockley v. Law Office of Cantrell, Green Pekich, Cruz & McCort (2001) 91 CalApp.4th 875 v.cccccccccscssessssssseseeeseseseseeseseee Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal. Ath 1057 v..ccccccccecccsscscsecccscsessesesececsvsesereseeseesvseaessen 2 RiverWatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186 oo...eeeeeeeeseeeeeeeeees Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282 o....cccccccccccseceesseeesseseeseeseseee Sosinsky v. Grant (1992) 6 Cal.App.4th 1548 oo. ccccecsccsecsscsesseereeeees Stafford v. Ware (1960) 187 CalApp.2d 227 ...ccccccscsesccssscsesssssesesessecsteeeeaes Western States Petroleum Assn. v. Superior Court (1995) 9 Cal. 4th 559 ooo... eceeeceeseneeeeeeeeeeeeteneeeeeees Rules of Court California Rules of Court, rule 3.13865(C) ..........cccecccee eens ll Page(s) evsneeeneees 2 seseeeaeeee 3 beveeeeeanees 2 veveeeees 4,5 veseeeeeeeees 3 beste 2,3 beseeeeeeeees 6 lessees 4 beveeneesaees 3 IN THE SUPREME COURT OF CALIFORNIA CITY OF SAN DIEGOet al., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent. OPPOSITION TO REQUEST FOR JUDICIAL NOTICE OF EXCERPTS OF THE ADMINISTRATIVE RECORD CITED IN THE ANSWER BRIEF ON THE MERITS INTRODUCTION The City of San Diego and the Redevelopment Agencyof the City of San Diego (the City) seeks judicial notice of the excerpts of the administrative record cited in its Answer Brief on the Merits. This Court should deny the motion. To begin with, the Rulesof Court do not authorize the use of a motion for judicial notice as a vehicle to create a courtesy compendium of record citations for a court’s convenience. More fundamentally, one of the documents included in the City’s motion was excluded from the administrative record by the trial court, and is therefore not appropriately before this Court in any form. ARGUMENT A. A motion for judicial notice is not the appropriate procedure to provide the Court with a courtesy compendium of documents already in the Court’s possession. “ “Judicial notice is the recognition and acceptance by the court ... of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Lockley v. Law Office of Cantrell, Green Pekich, Cruz & McCort(2001) 91 Cal.App.4th 875, 882.) Once a court takes judicial notice, “the ‘fact’ noticedis, in effect, treated as true,” and“[j]udicial notice is thus a substitute for formal proof.” (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 (Sosinsky).) A requestfor judicial notice cannot “be used to ‘circumvent ]’ appellate rules and procedures, including the normal briefing process.” (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1064-1065, overruled in part on another ground in Jn re Tobacco Cases IT (2007) 41 Cal.4th 1257, 1276.) Here, no rule authorizes a party to use a motion for judicial notice to submit a courtesy copy of materials cited in a party’s brief.! | The City admits that that the purpose of its request for judicial notice is not to establish the existence of a matter of law or fact as indisputably true, but rather to provide the Court with a courtesy copy of citations in the City’s answerbrief. (RJN 5.)? The City’s motionis thus an improperuse of a motion for judicial notice procedure and should be denied. The City’s reliance on Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307,fn. 18, and Katzeff v. Department of Forestry & Fire Protection (2010) 181 Cal.App.4th 601, 606 fn. 2, is misplaced. (RJN 3-4.) In those cases the court took judicial notice of court records that were relevant to the issues on appeal but not otherwise part of the administrative record. (Silverado, at pp. 291-292, 295, 307-308,fn. 18 [granting judicial notice of excerpts from administrative record for a prior EIR that was no longerin litigation but related to EIR under review]; Katzeff, at pp. 606-607 & fn. 2 [granting judicial 1 California Rules of Court, rule 3.1365(c) does provide that “[a] court may require each partyfiling a brief to prepare and lodge an appendix of excerpts that contains the documents or pagesof the record cited in that party’s brief.” However, this Court has not issued an order under that rule. And, were this Court to issue such an order, rule 3.1365(c) contemplates only that a party may “lodge” its excerpts with a court, not that a party should seek a ruling that these excerpts are “indisputably true” (Sosinksy, supra, 6 Cal.App.4th at p. 1564) through a motionfor judicial notice. 2 This opposition uses the following citation formats: “CT- [volume]:[page]” (Clerk’s Transcript), “RJN” (City’s request for judicial notice). notice of administrative record because appeal arose from grant of motion for judgmenton the pleadings, where basis for such motion must appear on the face of complaint or in matters subject to judicial notice].) Neither case suggests that it is proper to take judicial notice of documents already in the appellate record for the mere purpose of assembling them in a more convenient format. B. Atminimum, this Court should not take judicial notice of a document the superior court ruled wasnot part of the administrative record. “(I]t would never be properto take judicial notice of evidence that (1) is absent from the administrative record, and (2) was not before the agency at the time it madeits decision.” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 573, fn. 4; RiverWatch v. Olivenhain Municipal Water Dist. (2009) 170 CalApp.4th 1186, 1218-1219 [denying request for judicial notice of documents not part of administrative record].) The City claims all of the documents included in its motion are contained in the administrative record for the Environmental Impact Report (EIR) under review here. (RJN 1-2, 6.) The City is wrong. | The issue of what could be included in the certified administrative record was the subject of extensive motion practice in the trial court. (See CT-1:51, 53, 58, 60, 67, 108, 184; CT-2:317, 321, 328, 338, 393, 427, 437; CT-7:1624-1626 [summarizing history].) The City sought to include many more documentsin the certified administrative record than CSUoriginally certified. ([bid.) Amongthe additional documents the City sought to include was one entitled “San Diego State University Financial Statements 2007,” markedfor inclusion as SAR Vol. 35, pages $25410 to 825453 (the 2007 Financial Statements). (CT-2:334, 347 [lines 10-11], 357-360, 380, 389-390.) The Superior Court ruled that these documents, including the 2007 Financial Statements, should not be included in the administrative record because they were not before CSU, and CSU did not consider them, whenit certified the EIR. (CT-2:437- 438; CT-7:1625.) The City did not challenge this order on appeal. The City has now included the same 2007 Financial Statements among the documents of which it seeks to have this Court take judicial notice. (RJN, Index of Excerpts of Administrative Record, p. 3 [tab 38]; Exhs. to RJN, tab 38.) The sole basis for the City’s request is that this document was purportedly part of the administrative record. But because this document wasin fact not part of the administrative record, this | Court should deny the requestfor judicial notice with regard to this document. C. The lower courts did not take judicial notice of the entire administrative record. The City claims each court in a CEQA action must consider whether the lead agency's factual conclusions in the EIR are supported by substantial evidence “ ‘in light of the whole record,’ ” and, therefore, “the trial court and the Court of Appeal took informal judicial notice of the Administrative Record.” (RJN 3-4.) The City does not explain what it means by “informal judicial notice.” In any event, the City misconstrues the meaningofjudicial notice. “ “There is a vast difference between judicial notice and judicial knowledge.’” (Stafford v. Ware (1960) 187 Cal.App.2d 227, 231-232.) The mere fact that a court hasreviewedthe entire record in the case before it does not mean that the court has taken judicial notice of the entire record. Such “whole record” review provides no support for granting the City’s motion. CONCLUSION This Court should deny the City’s request for judicial notice. October 22, 2012 HORVITZ & LEVY LLP BRADLEY S. PAULEY JEREMY B. ROSEN MARKA. KRESSEL GATZKE DILLON & BALLANCE LLP MARK J. DILLON MICHAEL S. HABERKORN DANIELLE K. MORONE Mark A. Kressel Attorneys for Defendant and Respondent BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the timeofservice, I was over 18 years of age and not a partyto this action. I am employed in the County ofLos Angeles, State of California. My business addressis . 15760 Ventura Boulevard, 18th Floor, Encino, California 91436-3000. On October 22, 2012, I served true copiesofthe following document(s) described as OPPOSITION TO MOTION BY THE CITY OF SANDIEGO AND REDEVELOPMENT AGENCYOF THECITY OF SAN DIEGO FOR REQUEST FOR JUDICIAL NOTICE OF EXCERPTS OF THE ADMINISTRATIVE RECORD CITED IN THE ANSWER BRIEF ON THE MERITSontheinterested partiesin this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary businesspractices. I am readily familiar with Horvitz & Levy LLP’s practice for collecting and processing correspondence for mailing. On the same day that the correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postagefully prepaid. I declare under penalty ofperjury under the lawsofthe State of California that the foregoing is true andcorrect. Executed on October 22, 2012, at Encino, California. QeMO. Robin Steiner SERVICE LIST San Diego v. CSU Christine Marie Leone (SBN 208803) Office of the City Attorney 1200 3rd Avenue, Suite 1100 San Diego, CA 92101 Phone: (619) 533-6392 Fax: (619) 533-5856 Email: leonec@sandiego.gov Margaret M. Sohagi (SBN 126336) Philip A. Seymour (SBN 116606) Nicole H. Gordon (SBN 240056) The Sohagi Law Group, LLP 11999 San Vicente Blvd., Suite 150 Los Angeles, CA 90049 Phone: (810) 475-5700 Fax: (310) 475-5707 Email: msohagi@sohagi.com pseymour@silcom.com ngordon@sohagi.com John F. Kirk (SBN 149667) Deputy General Counsel San Diego Association of Governments 401 “B” Street, Suite 800 San Diego, CA 92101 Phone: (619) 699-1997 Fax: (619) 699-1995 Email: jki@sandag.org MarkJ. Dillon (SBN 108329) Michael S. Haberkorn (SBN 159266) Danielle K. Morone (SBN 246831) Gatzke Dillon & Balance LLP 1525 Faraday Ave., Suite 150 Carlsbad, CA 92008 ' Phone: (760) 431-9501 Fax: (760) 431-9512 Email: mdillon@gdandb.com mhaberkorn@gdandb.com dmorone@gdandb.com S199557 (Counselfor Plaintiffs and Appellants City of San Diego and Redevelopment Agencyof the City of San Diego) (Counsel for Plaintiffs and Appellants San Diego Association of Governments and San Diego Metropolitan Transit System) (Counsel for Plaintiffs and Appellants San Diego Association of Governments and San Diego Metropolitan Transit System) (Counsel for Defendant and Respondent Board of Trustees of the California State University) Brandon 8S. Walker (SBN 254581) State of California Department of Transportation 1120 N Street (MS 57) Sacramento, CA 95812 Phone: (916) 654-2630 Fax: n/a Email: brandon.walker@dot.ca.gov Sabrina V. Teller (SBN 215759) Remy, Thomas Moose and Manley 455 Capitol Mall, Suite 210 Sacramento, CA 95814 Phone: (916) 443-2745 Fax: (916) 443-9017 Email: steller@rmmenvirolaw.com Clerk Court of Appeal Fourth Appellate District Division One 750 “B” Street, Suite 300 San Diego, CA 92101 Hon. Thomas P. Nugent San Diego Superior Court North County Division Vista Regional Center 325 S. Melrose Dr., Dept. 30 Vista, CA 92081 (Counsel for Amicus Curiae Departmentof Transportation) (Counsel for Amicus Curiae League of California Cities and California State Association)